THE COMBAT JAG:

A Commanders Guide to Dealing with

Lawyers on the Battlefield
LIEUTENANT COLONEL KURT A. SCHLICHTER

espite most infantry leaders fervent

wishes, there is simply no way of
avoiding lawyers on todays battlefield.
The nature of todays battle space, where complex
questions of American and international law
intersect to create traps for the unwary, means that
where Soldiers go, the attorneys will go right along
with them. Lawyers have always been critical in Bosnia and
Kosovo, and those serving in Afghanistan and Iraq today must
turn to Judge Advocate General (JAG) officers for advice on
everything from the spending of government funds to rules of
engagement and the treatment of detainees. Making the legally
correct decision on all of these issues is critical to the success of
the mission, and all of them are potential career-ender or even
go-to-Leavenworth issues.
An infantry commander is tactically and technically proficient
on all his combat and combat support systems he knows how
to employ the tools the Army gives him. But the Army does not
effectively teach him how to use his JAG. That can cost him and
his Soldiers dearly. However, while a JAG officer is not a combat
multiplier in the sense that an attached tank company is, by
understanding a few simple concepts, the nonlawyer commander
can effectively employ his attorneys and avoid missteps that can
paralyze his unit or worse.
MIND-SETS: THE LEADER AND THE LAWYER
The fact that attorneys take a good deal of grief from their
combat arms officers counterparts demonstrates that there are huge
differences in the way combat leaders and attorneys think and
approach problems. That is not to say a lawyer cannot serve as a
combat arms officer; in fact, the systematic approach to problem
solving taught in law school lends itself well to analyzing military
problems. It means that a combat leader should keep in mind that
the purpose of law school is not so much concerned with the
technical aspects of teaching laws and statutes but rather with
developing the ability to think like a lawyer. This line of thinking
will allow an attorney to approach each legal problem
systematically so as to discover the right answer.

The concept of the right answer

demonstrates one of the key disconnects between
many combat leaders and attorneys. As combat
arms leaders, we respect decisive action and clear
guidance in response to tactical problems. But when
a combat leader asks a complex legal question,
the JAGs response is almost always something
quite different. The lawyer is noncommittal. Instead of saying
what will happen, the lawyer might list several possible results
ranging from positive to negative. When asked What is the
answer? the response is often something like Well, it depends.
The combat leader needs to understand why he is receiving
that type of nonanswer answer. To an attorney, as a practical matter,
there rarely is a right answer. There are only more likely and
less likely results. Thats because an attorney operates in a world
where actions and decisions are not necessarily judged by an
objective standard but by a subjective standard by an
investigator or even by a judge and a jury in the most serious
cases after the fact. In reality, the answer is usually less what is
objectively correct than the attorneys best estimate of what
subsequent fact finders would determine to be legally correct.
Further, no one consults an attorney on the easy questions, the
ones that are governed by clearly defined rules. (Lawyers call the
rare unambiguous rules black letter law.) No one ever asks the
local JAG if it is acceptable to shoot a detainee; everyone knows that
it is illegal. But Soldiers might ask whether they can pressure a
detainee to cooperate by denying him sleep for a period. As the recent
debates and controversies have demonstrated, the answer to that
question was less clear cut early in the Global War on Terrorism.
With this in mind, a commander must realize that the ultimate
decision is his responsibility alone. In the final analysis, a JAG is
only an advisor one with specialized knowledge, but an advisor
nonetheless. The commander will bear the consequences of a
mistake, not the JAG. But by understanding the way his JAG
thinks, he can better evaluate the JAGs advice.
MAKING THE MOST OF YOUR JAG
While some commanders treat their JAGs like a sort of pagan
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PROFESSIONAL FORUM
priesthood, where the lawyers are the only
ones with access to a secret font of legal
wisdom, the effective commander will treat
his JAGs as Soldiers first.
Many JAGs were prior service before
attending law school so they may
understand how a combat unit works in a
way a JAG who began his career with the
JAG Basic Course cannot. Regardless, JAG
Soldiers need to participate in all facets of
training and operations; putting them in a
corner and telling them to focus on the law
would bear little resemblance to the reality
in the field.
One deploying brigade commander
assigned a JAG to the planning cell. The
JAG officer found himself immersed in all
aspects of combat operations as well as
support tasks. All the while, he was able to
add his legal perspective even as he did the
same things regular Soldiers did
honchoed the military decision-making
process, wrote orders, and briefed the
command. His success won him the trust
of his leaders and improved the quality of
his advice.
There is nothing that says that a JAG
cannot road march, learn to operate an
armored vehicle, fire heavy weapons or

8 INFANTRY November-December 2005

participate in battle drills. If the Global War

on Terrorism has taught us anything, it is
that every Soldier can find him or herself
under fire. You do that young officer and
yourself no favors by excusing him from
the training that could save his life.
EMPLOYING YOUR JAG
A JAG provides the commander with
legal advice based upon his or her legal
knowledge and research combined with his
or her military experience. As discussed
above, sometimes that military experience
is limited. As for legal knowledge, JAGs
will have a basic understanding of the law
as it applies to common questions. On some
issues, however, the JAG will need to do
research either by using legal references
(including regulations, statutes and even
court cases) or by contacting subject matter
experts (often other JAGs).
The commander needs to know this
because he needs to be able to test the
validity of the JAGs legal opinion. The
commander should, as standard operating
procedure, expect the JAG to explain the
basis of his or her opinion when providing
it. For example:
JAG: Sir, I believe that the rules of

engagement should limit our Soldiers to

using deadly force only when they are
personally under direct fire.
Commander: So you are saying you do
not believe that our troops can open fire if
they believe they are about to come under
fire or if civilians are being fired upon. That
seems very restrictive. All right, why do you
believe that?
At that point, the commander should
expect the JAG to walk him step-by-step
through the legal analysis process that led
to this conclusion. In such a case, the JAG
should, at a minimum, show how the higher
commands rules of engagement provide
that limitation as well. If the commander
is still unsure, he should direct the JAG to
contact the higher headquarters for
clarification.
It is important to also understand that
lawyers, particularly litigators (Litigators
are the minority of attorneys who generally
argue cases in court; most attorneys are not
litigators and rarely argue cases), will tend
to advocate for the view they embrace. This
can be a problem when giving advice, as
the commander needs an objective analysis
of all sides of the issue, not just the side
the attorney subscribes to. A commander
needs to be wary when he senses the
JAG has morphed from being an
impartial advisor into being an
advocate for one point of view.
Of course, there may be a
good reason the JAG is so

dead-set on his conclusion; the commander simply needs to keep

the lack of objectivity in mind when coming to a
decision.
For more complex issues, particularly ones
concerning decisions that might come
under legal review, the commander
should require a written legal opinion.
A legal opinion is usually in
memorandum form and typically
follows the IRAC format.
(I) Issue: The issue is the precise
legal question being discussed.
Clearly setting forth the legal issue
helps the JAG focus. If the
commander sees that the issue is
wrong, he can immediately send the
memo back to the JAG for another
try.
(R) Rule: This is the particular
legal rule or rules applicable to the
issue. The rule can come from
many sources a policy letter, a
regulation, a section of the
Uniform Code of Military Justice
or even the text of a treaty. In
Kosovo, for example, United
Nations
Security
Counsel
Resolution 1244 provides the legal
basis for American military
operations, and Kosovo Force JAGs
frequently refer to it for guidance.
Regardless, the Rule section should
clearly state the rule and how it is to be
applied. A good practice is to require that
the author attach a copy of the verbatim rule
as an exhibit to the memorandum.
(A) Analysis: The analysis is the heart of the memorandum. In
this section, the JAG will set out the material facts of the situation
then apply the rule to those facts. A good analysis, however, will
be objective. The JAG should state the arguments for all possible
sides. This is not the place for advocating. If the analysis is weak
or incomplete, the commander should send it back.
(C) Conclusion: This is where the lawyer gives his advice. The
commander should not attempt to force a rock-solid answer to a
tough legal question, but he has a right to the best advice the JAG
can give i.e., the JAG should state clearly what decision he
thinks the commander should make.
Of course, there may be several different issues in any particular
situation; the JAG should use a separate IRAC analysis for each
one. Further, the IRAC format is not just for written opinions.
The JAG should explain his or her reasoning by setting out the
IRAC points even when verbally discussing his or her advice.
This way of preparing and providing legal advice will be very
familiar to anyone with experience in the corporate world. In the
business world, nonlawyer businesspeople demand that their
attorneys explain their reasoning fully and clearly an expectation

justified by the hundreds of dollars an hour top attorneys charge.

An Army commander should expect no less, especially
where the stakes are higher than mere money.
LAWYERS AS PROBLEM SOLVERS, NOT
OBSTACLES
As with any groups of Soldiers, some JAGs
will choose the path of least resistance. With
regular Soldiers, that means they will
eschew initiative and not act until
expressly directed. With lawyers, the
path of least resistance is often
to simply say No.
A JAGs job is to give
advice, and sometimes
No is good advice.
But the best combat
commanders do not
foster an environment
where staff members create
obstacles

the
best
commanders demand solutions.
For example, one senior combat arms
officer made it clear to his subordinates
that whenever they brought him a
problem, they must also bring a solution.
He refused to allow them to shift their
challenge to him by leaving it to him to
complete their mission. That technique is
equally applicable to JAGs. If the JAG
determines a certain course of action does not
comply with the law, he should be expected to
offer some other way to satisfy the
commander s intent that does comply.
Incidentally, that senior officer was himself a
civilian attorney.
CONCLUSION
Todays commanders face more and more difficult legal
challenges than ever before. Whether we like it or not, for the
foreseeable future, lawyers will be as much a part of a commanders
toolkit as the chaplain and the sergeant major. For that reason,
a commander must know how to effectively employ his JAGs so
that he receives the very best possible advice. His career, his
mission, and sometimes even lives, can depend on it.
Lieutenant Colonel Kurt A. Schlichter is a member of the California
Army National Guards 40th Infantry Division (Mechanized) and currently
serves as a member of Task Force Falcon in Kosovo. He served on active
duty with VII Corps during the Gulf War and with the 3rd Battalion, 160th
Infantry Regiment during the Los Angeles Riots and the Northridge Earthquake
mobilizations. Qualified as both an Infantry and Chemical Corps officer, LTC
Schlichter served as commander of Company E, 3rd Battalion, 160th Infantry
Regiment; commander of Headquarters and Headquarters Company, 1st
Brigade, 40th ID (Mech); and operations officer (S3), 1st Brigade, 40th ID
(Mech). A civilian trial attorney, LTC Schlichter is a litigation partner at
Gunderson, Schlichter, Shonack & Handel, LLP, in Manhattan Beach,
California.

November-December 2005 INFANTRY